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Symposium Transcript, In Re Opioid Litigation: The Pretrial Phase, Rodger D. Citron

Touro Law Review

In October 2023, Touro Law Center held a two-day conference on “The Past and Future of Opioid Litigation.” The inspiration for the conference was an extraordinary five-month jury trial in Suffolk County presided over by Hon. Jerry Garguilo. The trial, which was the first in the United States to include all parties in the pharmaceutical supply chain, from manufacturers to wholesale distributors to retail sellers, began in the summer of 2021. As Touro Law Dean Elena Langan notes in her introductory remarks below, because of the pandemic, the trial began and continued for a period of time in the auditorium …

Symposium Transcript, In Re Opioid Litigation: The Trial Phase, Rodger D. Citron

Touro Law Review

In October 2023, Touro Law Center held a two-day conference on “The Past and Future of Opioid Litigation.” The inspiration for the conference was an extraordinary five-month jury trial in Suffolk County presided over by Hon. Jerry Garguilo. The trial, which was the first in the United States to include all parties in the pharmaceutical supply chain, from manufacturers to wholesale distributors to retail sellers, began in the summer of 2021. Ultimately, in 2022, the case settled. This allowed Judge Garguilo and attorneys from the case – Jayne Conroy, who represented one of the plaintiffs, Suffolk County, and Harvey Bartle, …

Addressing Opioid Use Disorder In The Middle East And North Africa (Mena) Regions, Alyaa Chace

Touro Law Review

The opioid crisis has devastated communities across the United States, prompting extensive litigation against pharmaceutical companies for their role in fueling addiction. Aggressive pharmaceutical marketing has led to the development of key lawsuits against Purdue Pharmaceuticals, the Sackler family, Johnson & Johnson, and Teva Pharmaceuticals, as well as a landmark $26 billion global settlement involving major distributors. U.S. courts have played a crucial role in corporate accountability, mandating record financial settlements alongside behavioral and policy reforms. By contrast, the opioid crisis in MENA, which stemmed largely from illicit drug trafficking often linked to geopolitical instability, has been more often met …

“In Defiance Of Gifts”: The Dutch Origins Of The Foreign Emoluments Clause, Liam E. Cronan

Touro Law Review

Starting in 2017, a series of lawsuits against President Donald Trump grounded their arguments on a long-overlooked portion of the Constitution: the Foreign Emoluments Clause, which in its most basic form bans government officials from accepting gifts, or “emoluments,” from foreign entities. Until 2017, few courts or scholars had ever scrutinized this provision. But with Trump’s presidency and enduring reports of his foreign business dealings, this oft-shunned area of the law suddenly garnered the attention of courts and scholars alike. Because of a clear “lack of precedent” on this matter, federal judges soon parsed historical records to determine the Clause’s …

Courting Bias: Effects Of Gender Socialization And Judges' Genders On Litigants And The Judiciary, Ellie Barmes

Indiana Journal of Law and Social Equality

No abstract provided.

Judging Judiciaries: How Sticky Defaults, Status Quo Bias, And The Sovereign Prerogative Influence The Perceived Legitimacy Of The New International Commercial Courts, S. I. Strong

Faculty Articles

Forum shopping is routinely criticized as contrary to procedural justice. However, recent years have seen an increasing number of jurisdictions engaged in the process of forum selling, in which countries actively seek to bring lucrative litigation business to their national judicial systems. One of the most common types of forum selling involves the creation of new international commercial courts designed to increase a nation’s competitiveness in the global litigation market.

Most studies of the new international commercial courts have focused on how procedural innovations adopted by different courts are likely to affect party choice. While useful, these analyses assume that …

Expertise, Ideology, And Dissent, Paul R. Gugliuzza, Jonathan R. Nash, Jason Rantanen

Faculty Articles

Part I sketches a theory of dissent, explaining how voting and opinion-writing behavior on a multi-member court, such as a federal court of appeals, is a function of both a judge's preferences, as well as costs, including the relational disruption that comes from disagreeing with colleagues.

Part II provides background on the U.S. Court of Appeals for the Federal Circuit as well as a survey of prior studies of decision-making on the court and explanations of those studies' limitations.

Part III describes our methodology, including the novel dataset we built for the purpose of this study.

Part IV conducts a …

Electing The Supreme Court, Dmitry Bam

FIU Law Review

There is a curious irony in how we select United States Supreme Court justices. According to basic constitutional theory, as well as the arguments made by many leading Framers at the time of the Founding, one of the Court’s primary roles is to serve as a check on the executive and legislative branches when they exceed the constitutional limits imposed by the American people. Yet, we ask those very branches to jointly select the justices responsible for enforcing these limits, leaving the American people with only an indirect (if any) role in the process. Not surprisingly, the justices nominated by …

Pitching For Reform: Cangrejeros' Push To Level The Legal Playing Field By Challenging Baseball's Antitrust Exemption, Justin P. Chaljub

Fordham Journal of Corporate & Financial Law

For over one-hundred years, professional baseball has enjoyed an antitrust exemption unique among American major sports leagues, stemming from Supreme Court decisions in Federal Baseball and its progeny. This exemption has significantly influenced the evolution and structure of Major League Baseball (MLB). Despite extensive criticism and challenges for judicial and legislative reform, the exemption persists today.

However, new efforts have emerged to comprehensively disrupt this framework. In 2023, Nostalgic Partners was brought and structured to reach the U.S. Supreme Court. Plaintiffs anticipated they would lose at the lower court levels and garnered widespread support for the Court to grant a …

Alternatives To Delaware? Evaluating Corporate Law In Nevada, Texas, And Wyoming, Joseph Landau, Bailey Swartz, Anthony Rickey, Robert Ragazzo, Benjamin Edwards, George A. Mocsary

Fordham Journal of Corporate & Financial Law

No abstract provided.

How To Evaluate Non-Majority Control: What History And Statutes Tell Us, J. Travis Laster

Fordham Journal of Corporate & Financial Law

Under American law, a person who controls a corporation is a fiduciary. Since the nineteenth century, American law has treated a person who wields a majority of the voting power as having control. For almost as long, American law has recognized that holding a majority of the voting power is sufficient but not necessary for control. During the past two decades in Delaware, two schools of thought co-existed regarding non-majority control. One school took a formal approach that (i) shifted from examining control over the business affairs of the enterprise to control over the board, (ii) discounted sources of influence …

The Political Commitment Of The Supreme Court Of Texas To Protecting Controlling Equity Owners, Val Ricks

Fordham Journal of Corporate & Financial Law

The Supreme Court of Texas has revealed a political commitment to protecting controlling equity owners—e.g., shareholders, LLC members, limited partners—from liability related to their equity ownership. The Court does not say this, of course. The commitment the Court intends to reveal is a legal one. The political commitment must be teased out of what the Court does. The purpose of this article is to tease. Its method is to examine how the Supreme Court of Texas, in cases involving controlling or significant equity owners, extends the reasoning of its opinions out beyond law, and sometimes in conflict with it. When …

Reviving Shareholder Voice By Redefining Pre-Suit Demand, Wendy Gerwick Couture

Fordham Journal of Corporate & Financial Law

This Article diagnoses, and seeks to cure, an undertheorized dynamic relationship between two levers of shareholder influence in the modern public corporation: suit and voice. This Article demonstrates that, under current Delaware law, a shareholder must stifle its voice in order to retain the ability to pursue a viable derivative claim, thus inhibiting the shareholder’s monitoring and information-sharing roles. In particular, the onerous “demand made” litigation pathway disincentivizes pre-suit demand, and the expansive definition of pre-suit demand captures shareholder communications to the board seeking corrective action other than litigation. To avoid this collision between suit and voice, this Article proposes …

When Accomodation Bars Access To Justice: Implications Of Video Remote Interpreting In Legal Settings, Quincy Craft Faber

Mitchell Hamline Law Review

No abstract provided.

The Fortunate Demise Of Sec Staff Legal Bulletin No. 14l, Raffaele Felicetti

Fordham Journal of Corporate & Financial Law

In 2021, the SEC published its now rescinded Staff Legal Bulletin No. 14L (“the 2021 Bulletin”), revising its interpretations of the “ordinary business” and “economic relevance” exclusions under Rule 14a-8. This Article contends that the post-Bulletin landscape has proven undesirable. It empirically shows that environmental and social (“E & S”) shareholder proposals—including anti-E&S proposals—surged in response. Between 2022 and 2024 alone, E & S proposals accounted for 40% of all such filings in Russell 3000 companies over the entire 2014-2024 period, generating an estimated $23.3 million in additional processing costs for companies during that three-year window. Despite their volume, these …

De/Reconstructing Delinquency, Eduardo R. Ferrer

Georgetown Law Faculty Publications and Other Works

Hundreds of thousands of children are brought under the jurisdiction of delinquency courts every year in the United States. Despite the reality that most children engage in delinquent behavior during their adolescence, poor children, children of color, children with disabilities, and children who identify as LGBTQIA+ comprise a disproportionate number of those who become delinquency system-involved. These disparities exist by design. Their origins can be traced back to the flawed first principles upon which the juvenile court was built and, specifically, to the unduly expansive legal definition of delinquency that has undergirded the jurisdiction and power of the juvenile court …

Dobbs V. Brown, Benjamin H. Barton

Dickinson Law Review (2017-Present)

Dobbs v. Jackson Women’s Health Organization1is the most important and impactful Supreme Court decision since at least Roe v. Wade, and potentially since Brown v. Board of Education. Past survey data show that most Americans can only name two Supreme Court opinions: Roe and Brown. Dobbs will surely join that list. This Article compares the history, drafting, and opinions of Dobbs and Brown to show what a missed opportunity Dobbs represents. Regardless of whether you agree or disagree with the opinion, it should be clear that Dobbs was one of those unique times (like that of Brown) where the Court …

Bankruptcy Appeal Barriers, Jonathan M. Seymour

Washington and Lee Law Review

Appeals in bankruptcy do not look like appeals elsewhere in the federal court system. In particular, bankruptcy appeal barriers are strikingly distinctive. These barriers serve outright to block an appeal from being decided. An appellate court may dismiss an appeal, rather than consider the merits, if facts on the ground have changed so much since the original decision that providing a remedy to an appellant, even if victorious, would not be prudent. Take ongoing litigation in the Boy Scouts bankruptcy case. A plan of reorganization was confirmed fixing the entitlements of victims to compensation. Dissenting creditors argued bitterly the plan …

Erie And Enforceability Of Forum Selection Clauses, Patrick Woolley

American University Law Review

Whether and to what extent state law governs the contractual validity of forum selection clauses in federal court remains highly contested. This Article argues for a two-part answer.

State law should govern whenever a party seeks a § 1404(a) transfer of venue within the federal judicial system. The Court has insisted that the choice-of-law rules of the state to which the suit is transferred govern when transfer is required by a contractually valid clause. That insistence accords with the Erie policy of vertical uniformity between state and federal courts only if the law of the state in which the transferring …

Structuring The President’S Removal Power: An Agency-Specific Approach, Peter Margulies

American University Law Review

Recent Supreme Court decisions have taken a broad view of the President’s power to remove executive branch officials. According to the Court, the President’s Article II obligation to “take Care that the Laws be faithfully executed” generally requires that the President have authority to remove officials at will. The Court has thus far declined to overrule Humphrey’s Executor v. United States, a 1935 decision upholding “forcause” restrictions on removal for multi-member “quasi-judicial” bodies such as the Federal Trade Commission (FTC). Nonetheless, recent Court decisions have eroded the rationale in the earlier case, which has received additional attention because of efforts …

Personal Jurisdiction’S Aberrant Theory Of Consent, Roger Michalski

American University Law Review

Consent has been a pillar of personal jurisdiction doctrine at least since Pennoyer. The Supreme Court recently strengthened this pillar by deeming a corporate registration statute to constitute consent. Consent to submit to a court’s adjudicatory power can now be unintentional, based on inaction, is irrevocable, does not have to be informed, is all-or-nothing, and is blind to power inequalities. Failing to say “no” at the right time in the right way means “yes.”

Such a theory of consent clashes with what consent means elsewhere. In other contexts, we are reminded that “no means no,” the “absence of no does …

The Hidden Verdict: Measuring Implicit Bias In Juror Decision-Making, Gina Dudley

Psychology | Senior Theses

This experiment examines the influence of implicit bias awareness on juror decision-making in cases involving Hispanic defendants. Explicitly, it tests three hypotheses: (1) bias-educated jurors will demonstrate lower conviction rates for Hispanic defendants, (2) these jurors will report higher confidence in their verdicts, and (3) they will show greater awareness of how their previous experiences influence their decision-making. This experiment uses a mock jury paradigm to investigate whether bias awareness interventions affect verdict decisions and juror confidence levels in cases with Hispanic defendants. Ninety participants were randomly assigned to receive or not receive implicit bias education before reviewing a case …

How Does The Modern Supreme Court Treat The Idea Of Retribution In The Context Of Capital Punishment?, Paige Forsberg

Honors Undergraduate Theses

This thesis explores the modern U.S. Supreme Court's treatment of retribution in the context of capital punishment, analyzing how justices have framed and justified the death penalty as a form of justice. Through the examination of key Supreme Court rulings and legal arguments, this study evaluates the evolving role of retribution in the Court’s decisions on death penalty cases, highlighting how judicial reasoning has shifted over time in response to legal, philosophical, and societal developments.

Retribution, long considered one of the primary justifications for capital punishment, is examined through a nuanced lens in this study. While historically viewed as a …

Rev. Dr. Martin Luther King, Jr. Celebration Lecture January 24, 2025, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

To Free A Predator: The Flawed Rationale For Overturning Bill Cosby’S Conviction, Michael C. Kovac

Dickinson Law Review (2017-Present)

No abstract provided.

Is Federal Question Jurisdiction Arising Or Setting, Lumen N. Mulligan

Faculty Works

In this essay, I respond to Professor Arthur D. Hellman. Hellman argues that "there is reason to be concerned that the [federal] judicial system falls short of the Framers' expectations--primarily by denying many litigants in cases presenting federal questions 'their real day in an Article III court,' but also by fostering 'balkanization' rather than uniformity in the interpretation of federal law." It is a privilege to comment upon Hellman's thoughtful piece. In doing so, I begin by questioning the value of originalist interpretations of Article III jurisdiction both descriptively and normatively. I then turn to an intra-originalist critique that paints …

Inconclusive History, Allen Roston

Faculty Works

No abstract provided.

College Courts: Administrative Abuse Of Title Ix And Its Consequences, Noah Bloomberg

MC Law Review

This article examines the contentious application of Title IX in addressing campus sexual assault, tracing its evolution through recent presidential administrations. Initially designed to combat sex-based discrimination in education, Title IX has been expansively interpreted to regulate university adjudication of sexual violence cases. Policies introduced during the Obama administration mandated quasi-judicial procedures, sparking debates over fairness and due process, while Trump-era reforms shifted focus toward protecting the rights of accused students, prompting criticism from victims' advocates. The article argues that these approaches have overstepped Title IX's intended purpose, burdening universities and creating systemic challenges for survivors and the accused alike. …

Clarifying Concreteness: Statutory Grants Of Standing After Spokeo And Transunion, Naomi Eid

FIU Law Review

Article III limits the federal judicial power to deciding “cases” and “controversies,” demanding that a plaintiff suffer real, concrete, de facto harm to sue in federal court. In Spokeo and TransUnion, the Supreme Court clarified the outer limits of concreteness by making clear to plaintiffs that an injury in law is not an injury in fact. The Court largely grounded the decisions in the separation of powers, setting a tone that appears less deferential to Congress in its creation of statutory rights of action. A plaintiff does not automatically satisfy the injury-in-fact requirement whenever Congress grants a right and purports …

Policy And Poppycock In Proximate Cause Cases A/K/A Scope Of Liability And Starting To Make Sense, Thomas Galligan

FIU Law Review

Studying proximate cause is like trying to decode mumbo jumbo. Courts continue to use words like direct, remote, natural and probable, foreseeable, hindsight, and intervening and superseding causes, and they make them sound like tests. They make them sound like law. Furthermore, as one test is debunked and another appears, courts continue to apply the debunked tests. They just pile on a new one as well. Then, they calm themselves and say that proximate cause is all a matter of policy. After all, Leon Green said that; William Prosser said that. It must be true. But courts fail to ever …